KAHANA EDWARD

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MWANZA SUB REGISTRY)

AT MWANZA LAND APPEAL NO. 13357 OF 2023 (Arising from Ukerewe District Land and Housing Tribunal in Land Application No. 41 of2022 dated 19/04/2024) KAHANA EDWARD.................................................................. APPLELLANT

VERSUS SERIKALI YA KIJIJI MTONI...................................................... RESPONDENT

JUDGMENT 11th & 11th November, 2024 A. MATUMA, J. The appellant instituted an application for execution in the District Land and Housing Tribunal for Ukerewe with the view of executing the Decree in Land case No. 19 of 2018 of the Ward Tribunal of Nakatunguru Ward. The District Land and Housing Tribunal instead of deciding on the merits or otherwise of the application before it, doubted the judgment of the trial tribunal on the suspicion that such judgment was fraudulently procured because its proceedings were nowhere to be seen. In that regard, it proceeded to quash the judgment of the trial tribunal. Such decision aggrieved the appellant hence this appeal on two grounds whose major complaints are to the effect that; i /' The decision quashing the trial tribunal's judgment was reached without according opportunity to be heard to the appellant. ii. That the appellant's application was wrongly rejected without a hearing. At the hearing of this appeal, the appellant was present in person and represented by Mr. Erick Katemi learned advocate. The respondent was represented by M/S Sabina Yongo learned advocate. Both parties were in agreement that the approach taken by the learned Chairman of the District Land and Housing Tribunal was legally wrong because he departed from the matter at hand which was an application for execution and proceeded to determine the merits or otherwise of

the trial Court judgment which was before him just for execution. They thus argued this appeal to be allowed but without costs. Having heard the parties and gone through the decision of the District Land and Housing Tribunal, I find that it is true the applicant applied for execution of the judgment of Nakatunguru Ward Tribunal. He had the judgment of the Ward Tribunal which he sought to execute. None of the parties raised any concern about the said judgment. The learned Chairman Suo Moto suspected that suchjudgment was 2 fraudulently obtained because he could not see the proceedings of the case. As rightly argued by both; Sabina Yongo learned state attorney and Mr. Erick Katemi learned advocate, it was wrong for the chairman of the District Land and Housing Tribunal to suspect the trial Court's judgment and decide on his suspicion to the detriment of the appellant without according him an opportunity to be heard. It is a settled law that a judgment of the Court cannot be quashed in an execution proceeding. That was held in a number of cases including that of Hossea Kihwelo and 5 others versus Abdallah Ramadhani Mkumba, civil Revision No. 347/17 of 2018 in which the Court of Appeal held that the judgment of the Court cannot be quashed in an execution proceeding but, in an appeal, or Revision before the higher tribunal or Court. Since, before the District Land and Housing

Tribunal there was no appeal or Revision, it was wrong to decide on the merits or otherwise of the impugned decision. Fraud allegations by the chairman of the District Land and Housing Tribunal were wrongly acted upon as by doing so, it was contravening the 3 principle that speculative views should not be used to affect decision­ making. See; Materu Leison J. Foya versus R. Sospiter [1998] TLR 102. With the herein analysis and reasons, this appeal is allowed. The decision of the District Land and Housing Tribunal for Ukerewe in Maombi Madogo Na. 41 ya Mwaka 2022 is hereby quashed. Such application is hereby restored and it is hereby ordered that the same be heard by a different chairman with competent jurisdiction. No orders as to costs. It is so ordered. Judge 11/11/2024 Court; Judgment delivered in the presence of the appellant and his advocate Mr. Erick Katemi and M/S Sabina Yongo learned State Attorney. Judge 11/11/2024 4